GENTILE v. CITY OF NEW YORK

ANTHONYv.GENTILE, PLAINTIFF, V. CITY OF NEW YORK, THOMAS LONGER, AND MARSHA "DOE", DEFENDANTS.

The opinion of the court was delivered by: Denise Cote, United States District Judge

OPINION AND ORDER

Plaintiff Anthony V. Gentile ("Gentile") filed this civil action on September 25, 2001, asserting federal and state law claims arising from his arrest on September 11, 2000, and prosecution for an assault on the woman who is the mother of his child. Following discovery, the defendants have moved for summary judgment. That motion, which is unopposed, is granted.

The Complaint contains four causes of action: for false arrest, false imprisonment, malicious prosecution, and violations of the "First, Fourth, Fifth, Eighth, and Fourteenth Amendments". The only federal claim of which the Complaint gives adequate notice is a claim for violation of the plaintiff's Fourth and Fourteenth Amendment rights, which he is seeking to enforce through Title 42, United States Code, Section 1983.

Plaintiff, who is himself an attorney, has been represented throughout by counsel. This action was delayed for plaintiff's failure to appear at the initial conferences scheduled by the Court and at his deposition. The two defendants named and served by the plaintiff, the City of New York ("City") and Thomas Longa ("Longa") moved for summary judgment on January 6, 2003.*fn1

Plaintiff's opposition to the motion was due on January 20, but was never filed. As a consequence, the assertions of fact in the defendants' Local Rule 56.1 Statement are taken as true and as uncontroverted.

BACKGROUND

Gentile and Barbara DiFranco ("DiFranco") are the parents of a child. Prior to September 11, 2000, DiFranco had obtained two Family Court orders of protection against Gentile, and a consent order that Gentile would refrain from assaulting DiFranco.

On September 11, 2000, DiFranco was in Gentile's office on West 38th Street in Manhattan. An altercation ensued and a 911 call was placed from the office. DiFranco screamed into the telephone, "help, he's attacking me." Shortly thereafter, a telephone call was placed to the police from a pay telephone reporting that Gentile had attacked DiFranco.

The police responded, took Gentile to the 14th precinct, and eventually arrested him while he was there. Gentile was questioned extensively by the police and a domestic violence coordinator at the precinct. That same day, DiFranco wrote a domestic incident report and signed it under penalties of perjury. Defendant Thomas Longa also signed the report. The report indicated that DiFranco had gone to Gentile's office to discuss child visitation issues, that Gentile pushed her, that she fell backwards and banged her body on the corner of a desk. DiFranco denied hurting Gentile or even raising her hand against him. The photographs the police took of DiFranco's body showed bruising and scrapes consistent with the incident as she described it. Gentile's only explanation for the injuries was that DiFranco "flung herself against the wall and onto the floor" of his office.

DISCUSSION

Section 1983, of Title 42, United States Code, allows a plaintiff to sue for a violation of his constitutional rights. In this case, Gentile has alleged violations of his Fourth Amendment right to be free from unreasonable seizure. Claims for false arrest or malicious prosecution brought under Section 1983 are essentially equivalent to state law claims for false arrest and malicious prosecution. Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir. 2003).

The false arrest and imprisonment claims may be addressed together. They are, for purposes of the allegations in this case, synonymous with each other. Covington v. City of New York, 171 F.3d 117, 125 (2d Cir. 1999). They require proof that the confinement was not privileged. Jocks, 316 F.3d at 134-35. An arrest and the ensuing imprisonment are privileged when there is probable cause for the arrest. Id. at 135. Probable cause exists when an officer has "knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime." Id. (citation omitted). An officer may rely on the report of a victim of a crime to establish probable cause. See Loria v. Gorman, 306 F.3d 1271, 1290 (2d Cir. 2002). While there is no duty imposed on an arresting officer "to investigate exculpatory defenses offered by the person being arrested or to assess the credibility of unverified claims of justification before making an arrest," once an officer learns of facts that can establish a defense eliminating probable cause, such as acting in self defense, an officer may not "deliberately disregard facts known to him which establish justification." Jocks, 316 F.3d at 136.

The plaintiff has not raised any issue of fact to suggest that defendant Longa, assuming that he was the arresting officer, did not have probable cause to believe that Gentile had pushed and injured DiFranco. He does not dispute that DiFranco reported the assault to Longa, that she signed a statement of accusation describing the assault, and that the pictures the police took of her body were consistent with her description of the assault.

Although Gentile may have given an exculpatory version of the events to explain the telephone calls of distress to the police, DiFranco's allegations, and even her physical injuries, the police were entitled to rely on DiFranco's report and their observations of her injuries. In these circumstances, the motion for summary judgment addressed to the federal ...

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